Jurox Pty Ltd v Fullick

Court of Appeal (NSW)|2015-10-28|Before: Leeming JA, Simpson JA, Rothman J, As Simpson JA

Solicitors: Kennedys Law (Appellant) Bale Boshev Lawyers (Respondent) File Number(s): 2015/126713 Decision under appeal Court or tribunal: District Court Date of Decision: 02 April 2015 Before: Mahony DCJ File Number(s): 2013/281724

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

From late 2009, the respondent was employed on a casual basis by Integrated. In January 2010 Integrated assigned her to work as a production operator at a factory premises occupied by Jurox. Jurox is an animal health company. Its business includes the manufacture of veterinary pharmaceutical products. At times the respondent was directed to work in a part of the factory called "the powder room", in which was made a canine oral hydration pharmaceutical. The powder room operated "probably 4-5 times a year". In the powder room was a machine that had two "hoppers". The function of the machine was to pack the pharmaceutical product into sachets. The respondent's tasks included emptying (in circumstances the subject of some dispute on the evidence) 25 kilogram bags of a sugar substance (dextrose) into one of the hoppers, and smaller (10-12 kilogram) bags of a salt substance into the other hopper. The substances were then mixed and small sachets were filled with the resulting product.
The bags of dextrose were brought from a corridor outside the powder room, where they were stored on pallets. For this purpose a "lifter" (called a PV80) was provided. The lifter had a platform which was lowered to the level of the pallet, the bag of dextrose slid onto the platform, and the lifter wheeled into the powder room, and was placed adjacent to the hopper. The platform was raised, and the dextrose emptied from the bag into the hopper. On the system as devised by Jurox, the bag was placed on the platform so that the operator could slit open the bag and its contents would empty by force of gravity into the hopper. On this arrangement, there was no need for the operator to lift the bag until it was almost empty.

The respondent's injury

During the afternoon of 5 December 2011, while emptying a bag of dextrose into the hopper, the respondent felt pain in her back. She remained at work, but performing other, lighter, duties. She did not return to work the next day, and has not worked at Jurox since that event.
For a time, she was employed by Integrated on a variety of light duties tasks, such as filing. She received payments of workers compensation until the end of 2012, when the payments ceased.

The pleadings in the District Court

In the Statement of Claim filed in the District Court, the respondent pleaded that Jurox owed her a duty to "take reasonable care to ensure that the site and the system of work were safe and without risk of injury" to her, and that it was in breach of that duty. Specifically, she pleaded her case as follows: "5 On 5 December 2011, the Plaintiff was working at the site and was lifting and twisting while holding a 25 kilogram bag at shoulder level to pour the contents into a hopper, when she suffered severe injury, loss and damage. … 7 PARTICULARS OF NEGLIGENCE AND/OR BREACH OF STATUTORY DUTY 7.1 By the Defendant, its servants and/or agents, having a system of work that was unsafe and likely to cause injury, it requiring the Plaintiff to lift and twist while carrying a 25 kilogram bag at shoulder level. 7.2 By the Defendant, its servants and/or agents, failing to direct the Plaintiff not to carry out the work until such time as she was provided with a safe system of work. 7.3 By the Defendant, its servants and/or agents, failing to monitor, identify and/or eliminate the risk involved in the system of work, namely, the risk of injury from twisting while holding a 25 kilogram bag at shoulder level. 7.4 By the Defendant, its servants and/or agents, failing to warn the Plaintiff of the risks associated with the system of work. 7.5 By the Defendant, its servant and/or agents, failing to undertake any, or any proper risk assessment in relation to the system of work, such risk assessment likely to have prevented the circumstance of injury. 7.6 By the Defendant, its servants and/or agents, failing to provide any, or any proper training in regards to a safe system of work for lifting bulky and heavy items. 7.7 By the Defendant, its servants and/or agents, breach of the provisions of the Work Health and Safety Act 2010 and/or its Regulations insofar as the Defendant, as a person conducting a business and/or undertaking, failed to ensure, as far as reasonably practicable, the health and safety of the Plaintiff."
Jurox filed a Defence. It did not admit the allegation in par 5 of the Statement of Claim and denied the particulars set out in par 7. It pleaded that, in the event that it was held liable to the respondent for damages, the damages to be awarded should be reduced by the application of s 151Z of the Workers Compensation Act 1987 (NSW) ("the WCA"). Finally, it pleaded that, if the respondent suffered any injury (which it denied), the injury was caused or contributed to by the respondent's own negligence.

The primary judgment

The primary judge rejected the claim that Jurox failed to devise and maintain a safe system of work. He found that, although there was a "patent" risk of harm to the respondent (that being a risk of injury that may be caused by being required to lift a 25 kilogram bag of dextrose, the measures taken by Jurox to meet that risk constituted "a reasonable response". Importantly, he accepted that the process devised by Jurox involved no actual lifting of the 25 kilogram bags. He found, however, that the respondent was not carrying out the operation in accordance with that system, or as she had been instructed "by her employer" (sic). Instead of allowing the dextrose to cascade into the hopper by force of gravity, the respondent leaned forward from her waist, and, using her right arm at about shoulder height, and twisting her spine towards the hopper, lifted the bag from the back. He further found that Jurox was under a duty to maintain and supervise the system of work "to ensure that it was complied with", and that it "failed properly to supervise [the respondent] in the work she carried out in the powder room". One factor that led his Honour to this conclusion was that "other employees" also did not carry out the task in accordance with the Jurox system. Another was that the respondent's supervisor (Ms Kim O'Grady) had, without explanation, not been called by Jurox. He drew an adverse inference in accordance with the principles stated in Jones v Dunkel [1959] HCA 8; 101 CLR 298. He found that, but for Jurox's breach of duty in failing adequately to supervise, the respondent would not have suffered injury; accordingly, factual causation within the meaning of s 5D of the CLA was made out.
He considered the argument advanced by Jurox in relation to s 151Z(2) of the WCA; he noted that no evidence had been led by Jurox to the effect that the respondent suffered a degree of permanent impairment of at least 15 per cent (WCA s 151H). He noted evidence that Integrated had undertaken "audits of the work environment", but that these did not extend to the powder room. He considered that it was Jurox who failed to ensure proper supervision of its system of work. He concluded that any audit by Integrated of the work environment would have revealed that the system of work in the powder room was safe; what it would not have revealed was the inadequacy of Jurox's supervision, with the result that the respondent consistently performed the bag-emptying process in a manner that exposed her to a risk of injury. While expressly recognising that Integrated owed the respondent a non-delegable duty of care, he found no breach of that duty.
The primary judge did not address the plea of contributory negligence.
The primary judge enumerated 10 factual findings, of which the following are relevant for the purposes of the appeal: "1 … 2 On 31 March 2010 the plaintiff first worked in the powder room. She was given instructions by Ms Soper who worked there as to how to fill the hoppers with dextrose and nitrate. That demonstration included a demonstration of how to use the electronic lifting device, the PV80 model. 3 On 18 August 2010 the plaintiff underwent a general induction at Jurox. She was given no specific instructions on the lifting device on that day. 4 … 5 … 6 On 5 December 2011 I accept the plaintiff's evidence that she was carrying [out] work in the powder room which involved emptying the contents of 25kg bag of dextrose into the hopper by use of the electronic lifting device, the PV80. I accept her evidence that when the bag on the lifting device was near the hopper she cut open one end of the bag and then with her right hand, lifted the other end of the bag so as to empty the contents into the hopper. 7 I accept the plaintiff's evidence that in doing so, she was leaning forward from her waist and lifting the bag with her right arm at about shoulder height and twisting her spine towards the hopper. I accept her evidence that in doing so she felt a sharp pain in her back. 8 I find that the plaintiff was not carrying out the work as instructed by her employer. That process involved no lifting of the bag until such time as the majority of the content had emptied into the hopper, and there was little weight in the bag. 9 I find that once the powder room was ready for operation, the process consumed one 25kg bag per hour. Therefore, the plaintiff had to carry out the process of topping up the hopper once every hour of operation. 10 On 5 December 2011 I find that the powder room machine in fact operated for a short period of time only, concluding at 3.00pm." He proceeded to award damages. In this context he found the respondent to be a "poor historian" but nevertheless accepted her evidence, at least for the purpose of assessing the extent of her injury and its consequences, as truthful.

The Notice of Appeal

Twelve grounds of appeal were identified. Seven complained, in various ways, of the primary judge's findings of breach of duty of care, and what was said to be the inadequacy of reasons given for the conclusion that Jurox was in breach of its duty to the respondent. Jurox also challenged the finding of factual causation, the finding that s 151Z(2) of the WCA had no application, the failure to address Jurox's plea of contributory negligence, and the quantum of damages.
The respondent has not sought, by notice of contention, to challenge the rejection of her claim that the system of work was unsafe.
On the hearing of the appeal it was made clear by senior counsel for Jurox that the appeal was almost exclusively directed to the fact finding exercise by the primary judge. Three broad areas of complaint were identified: (i) what was said to be a failure on the part of the primary judge "to engage with the evidence" with respect to certain critical findings, those being:

supervision;
work practices of other workers;
the reliability or credibility of the respondent, and/or another employee, Ms Sophie Marsh; (ii) what was said to be a failure on the part of the primary judge to make a number of critical factual findings concerning the nature of the dextrose, and the manner and extent to which the dextrose would flow out of the bag once the bag was cut; (iii) what was said to be a failure on the part of the primary judge to give adequate reasons for his findings on critical liability issues, those being:
what an adequate supervisory system would have involved;
how compliance with an adequate supervisory system would have prevented the respondent's injury (that is, causation);
the applicability of s 151Z(2) of the WCA. Further, complaint was made of the failure to address the issue of contributory negligence.

The respondent's credibility

A sustained attack was made at trial on the credibility of the respondent, and was pursued on appeal.
As mentioned above, the primary judge made favourable findings concerning the respondent's credibility in respect of her evidence concerning her injury. He made no corresponding (or contrary) findings with respect to her credibility concerning the system of work at Jurox, or the circumstances of her injury, although he observed in that context also, that the respondent was "a poor historian".
In one respect, the attack on the respondent's credibility (or, at least, her reliability) bore fruit. This was in relation to one relatively narrow (though not unimportant) factual issue - the frequency with which she was required to empty bags of dextrose into the hopper.
The respondent's evidence at trial was that she performed the operation three times per hour, that is, once every 20 minutes and that she would go through three pallets of 10 bags (that is, 30 bags) on a shift. She maintained this when it was put to her in cross-examination that the capacity of the machine was limited to the "ingestion" of only one bag per hour.
The respondent's evidence gained some support from that of Ms Sarah Robinson, who worked at Jurox in 2011. She also said that three bags of dextrose per hour were emptied into the hopper.
The evidence given on behalf of Jurox was different. Ms Melinda Soper, who described herself as an "operator" employed by Jurox, and one of the more experienced employees said that, once the machine had commenced operating, the dextrose hopper needed "topping up" once every hour. That was supported by the evidence of Mr Nathan Hutchinson, who was the production manager at Jurox as at December 2011. Mr Hutchinson referred to a document containing data concerning the production rate for an order that was filled over a period that incorporated 5 December 2011. That document showed that, during that period, the "hourly charge of dextrose" was one 25 kilogram bag per hour. (On its own, the evidentiary weight of that document might have some limitations. The "hourly charge of dextrose" is, it appears, an extrapolation from other data recorded in the document. It is referable to the particular order that was filled over a period from 21 November 2011 to 25 January 2012. However, it is consistent with the evidence of Ms Soper, which is given in more general terms.)
The doubts about the reliability of the respondent's evidence with respect to the frequency with which she emptied bags of dextrose into the hopper do not end at her oral evidence. In an answer dated 12 May 2014 to a request for particulars by solicitors for Jurox, the respondent's solicitors wrote: "The plaintiff was directed to empty as many bags as possible to keep the hopper full during production. This involved working at a rapid pace. The plaintiff estimates that she emptied at least two bags per minute at a rushed speed."
An expert ergonomist (Mr Neil Adams), retained on the respondent's behalf by her solicitors, reported: "2.2.2 Mrs Fullick advised me that she worked virtually nonstop on the task of transferring bags of ingredients into the hoppers, such that each hour on average she emptied 60 of the 25kg bags, and the same number of the other bags, each into the relevant hopper … If she emptied the heavier bags into the hopper at the rate she recalls, she would have transferred 370 of bags from the pallet into the hopper by lunch time on the day of the incident. She would also over that period have lifted approximately 370 of the slightly lighter bags onto the hopper. I note that information produced by the defendant indicates that only one larger bag per hour (or a total of just over six bags by lunch time) had to be transferred from the pallet to the hopper. That information does not include any reference to the other bags and hopper."
The respondent was cross-examined about this. She could not recall giving those instructions to Mr Adams but said: "A. No. That is impossible. No. I - I - I know that could not be done."
In his oral evidence, Mr Adams confirmed that he had discussed with the respondent "the factual scenario that she said pertained at the time" of the respondent's injury, and that he had been instructed that she was required to load 60 of the 25 kilogram bags into the hopper every hour.
Senior counsel for Jurox also drew attention to inconsistencies in histories given by the respondent to various medical practitioners who examined her for the purposes of the proceedings.
The primary judge expressly resolved the factual issue concerning the frequency with which the respondent emptied the bags in favour of Jurox, in sub-par 9 of the factual findings set out above. By necessary implication, he rejected the respondent's evidence. He did not address any potential impact of that rejection upon any other issues where the evidence of the respondent was in question.

Instruction

As pleaded, the respondent's case focussed upon what was alleged to have been an unsafe system of work. That there was an unsafe system of work was a proposition that underlay all of the particulars of negligence set out in par 7 of the Statement of Claim, including particular 7.6, by which complaint was made of a failure by Jurox to provide "any, or any proper training". The assertion of failure to provide training was predicated on there being a system of work that required the respondent to lift bulky and heavy items. The primary judge's findings were such as to indicate that he rejected the proposition that the system of work involved lifting heavy and bulky items. (He specifically found that the system, if properly implemented, did not involve lifting the bags of dextrose.)
The respondent's evidence concerning her training was as follows. She said that, on commencement at Jurox, she was given a tour of the premises, but that she had no induction until about August. (That was consistent with the evidence of Mr Hutchinson, who said that, on initial assignment from Integrated, employees were given some site discussions with a safety officer, in collaboration with Integrated, and a general induction. They were started off on "very low complex, low risk tasks". Integrated employees were not given "a full blown Jurox induction" until after a satisfactory trial period, when they were considered for permanent employment.
The respondent said that the August "induction" consisted of her being shown a video that demonstrated "bending your knees and that sort of stuff". She said that when she was directed to work in the powder room, Ms Soper showed her the process. Ms Soper showed her how to place the bags of dextrose onto the platform of the lifter in the corridor, to set the bag crosswise on the platform of the lifter, wheel it into the powder room, raise the platform, and turn the bag around to a perpendicular position, so it could be opened over the hopper. She said that it was then necessary for her to "grab the end of the bag with my right hand", "slice it open", whereupon some of the contents would fall out into the hopper, and that she would then use her right hand to lift the bag from the back and tip the contents into the hopper.
That description was inconsistent with the evidence of Ms Soper, who described a process as outlined above, that depended upon the bag being placed in such a way as to allow gravitational force to operate on its contents.
The primary judge accepted that the respondent performed the task as she described (at least on 5 December 2011). It may be inferred that he accepted that this was how the respondent routinely performed the task. He did not, however, accept that this was how Ms Soper had trained the respondent to do the task. The finding, which was made by implication only, that the respondent routinely performed the task in the way she described is important because it bears upon the finding of inadequate supervision. If it were the case that the respondent's performance of the task on 5 December was an aberration from her usual performance, it would be difficult to conclude that Jurox failed properly to supervise. However, if it were the case that the respondent had misunderstood or misinterpreted the instructions initially given to her, and regularly lifted the bag before the bulk of its contents had been poured into the hopper, then it might be inferred that Jurox had negligently failed to observe and correct what she was doing.
The essence of the finding of liability was that, although the system of work was not unsafe (if implemented correctly) and that the respondent had been adequately instructed in its operation, the manner in which she carried it out was a departure from correct process, and created a danger, and that she was permitted, without correction, to continue to do so. It was the failure to correct the dangerous manner in which she performed the operation that gave rise to the finding of liability against Jurox.
It was not argued that, at least on 5 December 2011, the respondent did not perform the operation in a manner that departed from the instruction that she had been given, and was dangerous.
Logically, the first question with respect to the adequacy of supervision is whether the departure was an aberration on that day, something the respondent did on occasions but not habitually, or whether it was something she did routinely and habitually. The findings of the primary judge do not explicitly address this question.
The manner in which the respondent was questioned, and the answers that she gave, suggest that she was speaking of her practice in the manner in which she did the job. For example, the transcript records that the questioning opened with the following: "Q. Where were they [the bags of dextrose] taken from the [sic] to get to the hopper? A. They were taken from the corridor outside the powder room. Q. What would you use to take them from the pallet to the hopper? A. I would use the lifter. I would wheel the lifter out to the corridor, put it down low so I could drag … … Q. Would you normally have the bag on the lifter that way or not? A. Yes. … Q. … Could you tell his Honour what you had to do to get the bag in the correct position to empty the substance from the bag? Before you do anything like cutting or doing anything like that, what do you have to do with the bag to get it into position to empty it? Q. Once you got it into that position, did you then have to do any other thing to put the product into the hopper? A. Yes. Q. What was that? A. I would have to grab the end of the bag with my right hand … … Q. What was the next task that you did? What was the next physical thing that you did with the bag? A. I would slice it open. … Q. Then what did you do? A. Then some would fall out, and then I would pick it up to get the remainder -- Q. How did you do that? A. With my right arm on the end of the bag because it was hard to grasp. It was like - that was the only thing I could hang on to was the bottom of the bag … … Q. And I want you to put the letter 'R' where your right hand would go. Put an 'R' where you say, as best you can, where your right hand would normally go -- A. My right hand would go around here. … Q. Then what would you do? A. I would then hold the - where my hand is on the 'L', it would fall out and then I would grab the end with my right and lift up so it drops all into the hopper. … Q. That process was something that you did prom [sic] time to time in the course of your employment at Jurox -- A. Yes. Q. -- up until the time that you were injured? A. Yes." (italics added) Much later, in the examination-in-chief, in the course of being questioned about the particulars of contributory negligence provided, the respondent answered: "… I was doing the job how I did every day."
There was some cross-examination about this, but it is difficult to derive any clear response. The evidence is recorded as follows: "Q. There was no requirement at any time for [Ms Soper] to lift either the right corner or the left corner of the bag to empty the contents into the hopper, was it? A. I don't recall. Q. There wasn't, was there? A. I don't recall [Ms Soper] doing that. Q. You see, that is the way that you, once instructed how to do it, that's the way you went about doing that job for the 31 or so hours that you spent in that powder room over the period of your employment at Jurox before you say you injured yourself? A. I did that way, but nobody corrected me. Q. You did the way [Ms Soper] told you to, which I have just described, which was the correct way? A. Yes, I'm confused." The questioner went on to ask about photographs showing the correct system, and the number of bags to be emptied every hour. He did not return to the subject of the respondent's practice.
From all of this, it is a reasonable inference that the respondent on the occasions that she worked in the powder room, consistently performed the task as she had described. To the extent that the primary judge failed to consider the availability of such an inference, it is open to this Court to undertake the necessary exercise: Supreme Court Act 1970 (NSW), ss 75A(6) and (10).
In order to do so, it is necessary to consider the evidence of other witnesses. The relevant evidence has significant overlap with evidence relating to the question of the extent (if any) of supervision afforded to the respondent.
The respondent's evidence of the manner the operation was performed drew some support from evidence given by Mr Graeme Wilson, who worked for Jurox, initially through a labour hire company, and later employed directly, from 2003. He did not work in the powder room, but walked past it from time to time and could see the operation through the window. He observed employees loading the dextrose into the hopper. His evidence was: "Q. How did they get the substance out of the bag into the hopper once that cut had been made? A. A certain amount of it would flow out by gravity. … Q. After the cut is made, I think you said some other [sic - of the] product would come out, how did they get the rest of it out, that you observed, what did the operator do to get the rest of it out? A. Just lifted it up. Q. Lifted the bag? A. Mm."
However, in cross-examination, Mr Wilson gave the following evidence: "Q. … From your observations outside you know that when they cut these bags open on the platform that immediately the product inside the bag poured into the hopper; correct? A. Yes. … Q. You gave that evidence, didn't you? You said that it poured out when they cut it? A. It poured out, but not completely straight out. … Q. You aren't in a position to tell his Honour how much flowed out, though, are you? During those observations? A. No."
It is also necessary to note the evidence of Ms Sophie Marsh who was called in the respondent's case. Initially, Ms Marsh's evidence was of a process apparently unrelated to the powder room. After being permitted a conference with the counsel, she gave a different description of how the operation was carried out. She said the bag of dextrose was sitting upright, not flat, on the platform of the lifter, the operator cut the top with scissors, and manoeuvred the bag over the hopper. Only a small amount of the dextrose would fall into the hopper. The operator would have to grab the bottom of the bag and shake the rest of the dextrose into the hopper. She said that the only way to get all of the dextrose into the hopper was to lift the bag completely upright and to shake it.
Ms Sarah Robinson was another Integrated employee who worked at Jurox. She had worked in the powder room. She gave a description of manoeuvring the bag onto the lifter, placing the lifter over the hopper, and slitting the end of the bag. She said: "A. Then you had to lift it to get the motion of that sugar to go into the hopper." She said it was necessary to use two hands to do so, the right hand positioned on the back of the bag and the left at the opening. She said: "So you had to lift that end of the bag for the sugar to flow."
Ms Melinda Soper gave evidence on behalf of Jurox. She was employed by Jurox as an "operator". She was, effectively, the person in charge of the powder room. Part of her role was to train new recruits in its operation. She first worked with the respondent in March 2010 and trained her in the powder room process. Her own function, having trained the new recruit, was to operate the sachet machine. She collected the sachets of finished product from the machine and put them into a container. Her role involved an "In Process Check" (which she called an "IPC") of sachets every 15 minutes for quality control. She said that the respondent was good at the job. She was asked: "To your observation, did she [the respondent] carry it out in the manner in which you trained her?" to which she replied: "From what I seen, yes."
Ms Soper's evidence as to her opportunity to observe the respondent, and the extent to which she did so, was not always consistent. She gave the following evidence: "Q. It would be fair to say that as you're concentrating on that and completing the IPC you weren't looking at what, for example, [the respondent] was doing putting the dextrose bags towards the hopper or putting them into the hopper were you? A. No. … Q. You have said already that if you're focussing at least on the batch expiry seals, sections of samples, the number of samples of the sachets, you certainly weren't looking at [the respondent] then? A. No. … Q. So it is fair to say that when you were focussed on making sure the sachets were coming out and didn't fall everywhere, you were taking the samples that you needed to do for your IPC and you were walking at least in that direction you couldn't have been seeing what she was doing? A. No. Q. So you couldn't have been able to see her. In fact, probably while the machine was going it was fairly hectic what was going on. It was a fairly hectic situation. There is sugar going in and there's stuff coming out and there are boxes getting filled. Is that right? A. Yes. Q. It is a bit flat out, isn't it? A. Yes. Q. This is no criticism of you. I'm not being critical of you. A. No, you're right. Q. It is fair to say that your attention wouldn't have been on [the respondent] for much of the time at all in terms of watching what she did with these bags? A. No. Q. Is that fair? A. It is fair to say." The answers given by Ms Soper to the questions incorporating an "is it fair to say?" component are somewhat ambiguous. Having regard to the whole of the passage of cross-examination, I have come to the view that the negative answers should be read, not as rejection of the fairness of the proposition contained in the question, but as acceptance of those propositions which were negative. It was the formulation of the questions that created the ambiguity in the answers.
Nathan Hutchinson was the production manager at Jurox. His role included overseeing "the day to day production of the manufacturing environment" including "personnel performance" and safety. When asked if he had delegated the supervision of the respondent to Ms Soper he said: "A. I am going to say no. The reason I'm going to say no is because [Ms Soper] is not supervisor, she is a trained operator that would train and show what needs to happen and a person who works in there, in this case [the respondent], would assist in a process but she doesn't make any supervisory decisions. That is not in her realm. Q. You wouldn't expect her to give [the respondent] any directions at all after she had told her the first time how to do it? A. That's not what I'm saying. What I'm saying is that she doesn't make any decisions. A supervisor would have in relation to things like quality or what to do when something went wrong in a process. She is well within her scope of responsibility to teach training and what needs to happen on a process but there is limitations on what supervision, I suppose you refer, so" (I have extracted the answer as it appears in the transcript. It is likely that the second full stop is a mistake, and that the sentence should continue as "a supervisor …".) He also said that there was a "team leader", Kim O'Grady, although he was less than specific about any supervisory role that Ms O'Grady might have had. It did not appear from the evidence that Ms O'Grady was present in the powder room when the respondent was operating the hopper: only two persons worked in the powder room at any one time, one of whom was Ms Soper.
Mr Hutchinson agreed that, if the respondent had emptied the bag of dextrose into the hopper by reaching over the platform, and lifting the bag with her right arm, she would have been following an incorrect procedure. He said: "I would say to that it would have been reported to me, sir, multiple times. I would say to that that [the respondent] would have been hurt after the very first time she did it, sir. I would say it would have been raised by other operators. I would say that it would have been raised by Integrated. None of that occurred." He said that it would have been raised by Integrated because they had "a reporting function" and attended at the premises to "do audits of our work environment".
On my analysis of the evidence, it is most likely that the respondent did carry out the task in the manner she described, and contrary to the instruction given to her by Ms Soper, and that she did so as a matter of routine. Put differently, she adopted an unsafe work practice, and that work practice continued, uncorrected, until the day of her injury. That emerges from the examination-in-chief of the respondent, and her answers, extracted above at [58], which are clearly directed to the usual manner in which she undertook the task; from the absence of any evidence from Ms Soper that she ensured that the respondent understood her instructions (apparently given once only); and the absence of any real evidence of supervision.
The evidence to which I am about to refer concerning the extent of observation of the respondent at work in the powder room contributes to the separate conclusion that her unsafe operation on 5 December 2011 was not a departure from her usual practice, or an aberration. Another relevant circumstance is that no reason appears on the evidence to explain why the respondent might have undertaken a somewhat mechanical task differently on that day from other days.
This appears to me to be consistent with the view taken by the primary judge, even if not articulated in those terms.
I turn now to the question of the extent of supervision. One thing notable about Ms Soper's evidence is that she said that she demonstrated the process to the respondent. She did not suggest that she had done so more than once, nor that she had watched the respondent following her instructions until satisfied that she understood and complied with her instructions. When asked whether, to her observation, the respondent carried out the process in the manner instructed, she said: "From what I seen, yes" suggesting limited observation, consistent with the evidence concerning Ms Soper's functions in the powder room.
On the whole of the evidence, the most likely scenario is that Ms Soper demonstrated, correctly, to the respondent how the system was intended to operate. She did not (and it was not part of her role to) maintain any further supervision. To the extent that she observed the respondent performing her work (as she must have done to say that she was good at her work) it was coincidental, and very much ancillary to her involvement in her own tasks, which included (but were not limited to) 15 minute "In Process Checks" of the sachets. The work was "hectic" and "flat out".
Interestingly, while she was invited to comment on the process described by Ms Marsh, of standing the bag on its end (to which she answered that that was "ridiculous", and if she had seen anyone do it that way she would have stopped them and retrained them) she was not asked if she had seen anybody else do the operation the way the respondent described, of lifting the bag from the bottom after it had lain flat on the platform, partly emptied.
Senior counsel was critical of the primary judge for taking into account, in his assessment, that other employees had not carried out the task in accordance with proper procedure. In part, this criticism depended upon the evidence of Ms Marsh, which was undoubtedly at odds with the evidence of the respondent, to the extent that she claimed that the bag of dextrose was stood upright on the platform of the lifter. However, there was evidence of Ms Robinson which was, if not entirely in conformity with that of the plaintiff, close to it.
There was no evidence from Jurox of any formalised system of supervision. Mr Hutchinson's evidence made it clear that there was no person whose role or responsibility it was to ensure that, once she had undergone the somewhat superficial training by Ms Soper, the respondent understood her instructions and complied with them. Mr Hutchinson did refer to "audits" by Integrated, but he did not suggest that Jurox relied on Integrated in such a way as to relieve it of its own undoubted duty of care to the respondent.
These conclusions do not rely in any sense upon an assessment of the respondent's credibility; nor are they affected by the very real reliability issues which I have already outlined. As I have mentioned, it was not suggested that the respondent did not (on the occasion of her injury) undertake the task as she had described, in contravention of what she had been trained or taught to do. To have challenged that evidence would have been to jeopardise Jurox's case with respect to contributory negligence.
On this analysis, it is unnecessary to place weight on the evidence of Ms Marsh, upon which his Honour appears to have relied for the supportive finding that other employees had also carried out the process "in ways which deviated in significant ways from the system as designed".
Nor is it necessary to draw such adverse inferences as are available from the failure of Jurox to call Ms O'Grady. Although Ms O'Grady was described by Mr Hutchinson as a "team leader", the evidence does not support a conclusion that she was a supervisor, nor, indeed, that she worked in the powder room with the respondent.
Having undertaken the more extensive analysis of the evidence that Jurox contends the primary judge ought to have undertaken, I am satisfied that the conclusion he reached with respect to the inadequacy of supervision was correct. I am satisfied that even a modicum of supervision would have exposed the incorrect method that the respondent was using. It would have been a short step from exposure to correction, and the avoidance of the injury. Causation, within the meaning of s 5D of the CLA, is established. The risk of harm to the respondent from lifting 25kg bags from shoulder height was foreseeable (as Mr Hutchinson acknowledged, in his evidence that, had the respondent been observed, she would have been corrected) and not insignificant. It is true that, by the time she lifted the back of the bag, a quantity of the substance had discharged into the hopper, but, on the respondent's account, this appears to have been a relatively small quantity, insufficient to affect the risk of harm. Measures that could have been taken to avoid the harm eventuating could hardly be described as burdensome; the harm could have been avoided by Ms Soper (or some other Jurox employee) being designated to ensure that the respondent understood and applied Jurox's system. That would not have involved (as was contended on behalf of Jurox) constant supervision; it would have meant no more than reasonable attention, when the respondent was first instructed, to whether she had absorbed the instruction.
Negligence (as explained in s 5B of the CLA) on the part of Jurox is established.

Contributory negligence

The complaint that the primary judge overlooked the issue of contributory negligence is incontestable. It is an issue that can readily be determined by this Court: Najdovski v Crnojlovic [2008] NSWCA 175; 72 NSWLR 728 at [12].
Section 5R of the CLA is as follows: "5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time."
What is required for an assessment of contributory negligence is stated in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALR 529 as follows: "The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man … and of the relative importance of the acts of the parties in causing the damage … It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance." (at pp 532-533)
The conclusion that I have drawn above, that the respondent's practice was to operate in an incorrect (and risky) way, speaks clearly to the degree of negligence on the part of Jurox. The respondent performed the task in that way in the knowledge that Ms Soper was present in the powder room, a circumstance that must (if she had thought of it) given her a sense of security that her technique was, at least, acceptable. Indeed, Ms Soper described her as "good at" the job. That her incorrect technique went unobserved and unremarked, even in the presence of her instructor, is relevant to the standard of care to be required of the respondent for the purposes of s 5R(2)(a), as well as the question of what she knew or ought to have known, for the purposes of s 5R(2)(b). The respondent's incorrect technique resulted, not from a conscious departure from what she had been taught, or even carelessness, but from the entrenchment of a practice that ought to have been, and could easily have been, corrected at an early stage. It may safely be inferred that the respondent did not know that she was using the wrong (and a risky) technique; the presence of her instructor in the powder room, without comment as to her technique, does not leave open a conclusion that she ought to have known that her technique was incorrect, and exposed her to danger.
In these circumstances, I would not find contributory negligence.

Workers Compensation Act, s 151Z(2)

Section 151Z(2) of the WCA relevantly provides: "(2) If, in respect of an injury to a worker for which compensation is payable under this Act: (a) the worker takes or is entitled to take proceedings independently of this Act to recover damages from a person other than the worker's employer, and (b) the worker also takes or is entitled to take proceedings independently of this Act to recover damages from that employer, the following provisions have effect: (c) the damages that may be recovered from the person by the worker in proceedings referred to in paragraph (a) are to be reduced by the amount by which the contribution which the person would (but for this Part) be entitled to recover from the employer as a joint tortfeasor or otherwise exceeds the amount of the contribution recoverable, …"
Because:

the respondent's injury was one for which compensation was payable under the WCA;
the respondent took proceedings independently of the WCA against Jurox (not her employer); and
the respondent was also entitled to take proceedings independently of the WCA against her employer independent (that is, proceedings at common law, although such proceedings would have been governed in part at least by the WCA). Sub-section (2) applied. It is immaterial whether the respondent's injury failed to reach the 15 per cent threshold specified by s 151H of the WCA as a prerequisite to her award of damages: Maricic v Dalma Formwork (Australia) Pty Ltd [2006] NSWCA 174 at [37], per Basten JA (Beazley JA and Ipp JA agreeing).

The question then is whether Integrated was shown to have been a joint tortfeasor with Jurox. If it was, s 151Z(2)(c) required an assessment of the amount of the contribution that Jurox would be entitled to recover from Integrated.
The onus of proving that Integrated was a joint tortfeasor (at least in the circumstance where the respondent did not take the proceedings against Integrated that she was entitled to take) lay on Jurox: Maricic at [71], adopting the approach of Hodgson JA in Forstaff Blacktown Pty Ltd v Brimac Pty Ltd [2005] NSWCA 423; Aust Torts Reports 81-814 at [5]; see also Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; Aust Torts Reports 81-949 at [32] and Shoalhaven City Council v Humphries [2013] NSWCA 390 at [129].
The primary judge held that Integrated was not a joint tortfeasor. That was, as expressed by the primary judge, because Integrated had not been shown to be in breach of its undoubted duty of care. Analysis of his reasons suggests also that a claim against Integrated would have failed on causation grounds: that is the import of the finding that any audit undertaken by Integrated would have revealed a safe system of work, but not the failure of Jurox's supervision.
The only evidence called by Jurox was to the contrary of any breach of duty on the part of Integrated. Mr Hutchinson said that Integrated carried out audits of Jurox's systems. As was held by the primary judge, an audit of the system would have revealed an adequate and safe system. Reasonable care on the part of Integrated did not extend to supervision of Jurox's supervisory regime. Reverting to s 5B of the CLA, a reasonable person in the position of Integrated would not have taken the precaution of ensuring that Jurox supervised its own system of work.
The primary judge was correct to find that Integrated was not a joint tortfeasor, and, therefore, to hold that no s 151Z(2)(c) reduction was to be made.

Damages

The primary judge awarded damages quantified at $588,515, made up as follows:

non-economic loss (assessed, for the purposes of s 16 of the CLA at 27 per cent of a most extreme case): $57,000;
past treatment expenses: $14,075;
future treatment expenses: $22,000;
past economic loss: $111,800;
past superannuation: $12,300;
future economic loss: $219,640;
future superannuation loss: $30,750;
past gratuitous care and services: $33,100;
future gratuitous care and services: $80,350;
Fox v Wood: $7,500. By Ground 12, Jurox asserts that the award is "manifestly excessive" and "unsupported by the evidence". It particularly attacks the s 16 assessment of non-economic loss, and, in consequence of that assessment, the allowances made for past and future treatment expenses, past and future economic loss and past and future gratuitous domestic assistance. It was not in issue that the respondent suffers from a significant disability in her lower back. What was in issue was the cause of the disability.

Jurox's attack is essentially centred on the assertion of a single (but major) error. That error was said to be the determination of the extent to which the respondent's injury constituted an aggravation of a pre-existing degenerative condition in the respondent's lumbar spine. Jurox's position at trial was, and on appeal is, that the respondent suffered from a pre-existing condition, and that the incident of 5 December 2011 caused a temporary aggravation of that condition, the effects of which had long since ceased. While the primary judge accepted that the respondent did suffer an aggravation of a pre-existing condition, he considered the aggravation to be serious and not transient.
Essentially, resolution of the issues in the damages appeal depends upon that single question of fact. That calls for close examination of the evidence, that given by the respondent, and the medical evidence, which was extensive.
The competing positions of the parties are most clearly stated in the medical reports of two medical specialists. Dr Christopher Harrington is an orthopaedic surgeon to whom the respondent was referred for assessment by Integrated's workers compensation insurer, first in October 2012. His reports consistently stated the opinion that the respondent suffered from pre-existing underlying disc degeneration, and that, while the incident at Jurox caused an aggravation of that condition, the aggravation was temporary. In a report dated 10 October 2012, Dr Harrington wrote: "If her symptoms have not settled down by the end of this year then we can say the aggravation has ceased and her condition is due to the underlying spondylosis of her spine. … As to whether employment is the substantial contributing factor, I believe is it [sic] the substantial contributing factor to the aggravation but if these symptoms are still present after Christmas, her ongoing condition would be due to the underlying degeneration of her spine." He repeated this again in that report and subsequent reports.
In a later report (19 February 2013) Dr Harrington wrote: "When taking the history from [the respondent] upon my consultation, she gave the impression that she hadn't had back trouble prior to the incident at work in December 2011. To my way of thinking, she must have some back trouble because the CT scan in December 2010 (an entire year before the work injury) shows an abnormality at L5/S1 which is consistent with the MRI taken in December 2011. … Whilst I don't have the history from her GP as to why the CT in 2010 was organised I would have to conclude that she had pre-existing back pain warranting radiological investigation." He considered that the aggravation had, by the date of that report, ceased. (The reference to the CT scan will be explained below.)
On 23 April 2013 he repeated his opinion that the respondent's continuing pain was due to the intrinsic nature of her spine.
Dr T Mastroianni is a consultant occupational physician to whom the respondent was referred for medico-legal assessment by her own solicitor. Dr Mastroianni noted a CT scan of 17 December 2010 (the CT scan to which Dr Harrington had referred), which he said showed lumbar degenerative changes. In a report dated 13 November 2012, Dr Mastroianni had a very different view from Dr Harrington as to the causes of the respondent's ongoing back pain.
He considered that, as a result of the incident at Jurox, and consistently with that incident, the respondent aggravated a pre-existing lumbosacral disc lesion. He went on to report: "In my opinion she is still suffering from an injury within the meaning of the Act. As a result of the injury she has had persistent back pain and left leg symptoms which she did not have prior to the injury. … She has sustained permanent impairment as a result of the injury."
Dr Mastroianni's next report was dated 20 March 2013. Contrary to Dr Harrington's opinion, Dr Mastroianni considered that: "There is no evidence to support that the aggravation as [sic] ceased but to the contrary there is evidence that the aggravation is ongoing as the symptoms have persisted since the injury and also she now has a disability which she did not have prior to this injury."
The primary judge did not accept the opinion of Dr Harrington. He said (in a passage criticised on behalf of Jurox): "91 … Rather, I accept the evidence of the plaintiff that she suffered a different pain following this injury, a severe pain to her back, which has continued to the present time." He went on: "92 Whilst the plaintiff did suffered [sic] an aggravation of a pre-existing degenerative condition to her lumbar spine, it was a serious aggravation. That pre-existing condition was asymptomatic except on two prior occasions for short periods of time. During each of those occasions she had suffered pain in the back of her left lower limb, however, she had not suffered back pain. Following the injury she suffered a severe pain in her back which has continued …"
A significant aspect of the complaint made on behalf of Jurox in respect of the conclusion of the primary judge is his finding that the respondent gave evidence that she suffered a different pain following the injury. That, it was contended, had not been said by the respondent. It appears to be true that the respondent did not give evidence in those precise terms. However, she was cross-examined, at some length, to the effect that, when she first sought employment with Integrated, she had dishonestly denied any previous back injury. Her answer was: "At the time I was fine."
Further, in examination-in-chief, she gave quite extensive evidence concerning her pre- and post-injury condition, this being directed to her need for domestic assistance. She said that pre-accident she had been able to do her housework, gardening and lawn mowing, car washing and window cleaning. The finding of the primary judge is a reasonable extrapolation of that evidence.
More significant is the evidence of the respondent's medical records, provided by her general practitioner, Dr Aubrey Yeh. That, in my opinion, is unanswerable evidence that, prior to the Jurox incident, the respondent experienced no difficulty with her back. An entry on 6 July 2000 records a complaint of sciatica; an entry on 20 July 2000 records prescription of panadeine forte (but not the complaint for which it was prescribed); thereafter (although the respondent attended Dr Yeh's surgery regularly), there is no relevant entry until 22 December 2010, when the respondent is recorded as having, in a telephone call, complained of sciatica. She was referred for a CT scan of her lumbar spine. This was the CT scan to which both Dr Harrington and Dr Mastroianni referred. Dr Harrington interpreted the results as showing "an abnormality at L5/S1". From this, Dr Harrington deduced that the respondent "must have [had] some back trouble" and "I would have to conclude that she had pre-existing back pain warranting radiological investigation".
The absence of any record of back pain in Dr Yeh's notes was a significant factor in Dr Mastroianni's opinion. The respondent was cross-examined at length about her pre-accident medical history. At no point was it directly put to her that, prior to December 2011, she had experienced back pain. The nearest the cross-examination came was when the respondent was being questioned about a questionnaire she had completed on application for employment with Integrated. It seems that the respondent had answered "No" to a question about whether she had, or ever had had, back or neck pain or injury, and that that was not a truthful answer. (She replied that it was a truthful answer.)
Overwhelmingly in my opinion, the evidence shows that, notwithstanding the acknowledged pre-existing degenerative changes, the respondent's back was, prior to 5 December 2011, asymptomatic, and that, thereafter, it became and remained significantly symptomatic. Dr Mastroianni rebutted Dr Harrington's view that, if the respondent's symptoms had not settled by the end of 2012, it could be concluded that the aggravation had ceased and her condition was due to the underlying spondylosis of her spine, by saying: "I don't follow Dr Harrington's logic where he states that up until Christmas the symptoms are due to the injury but then miraculously after Christmas if they persist they are due to underlying degeneration of the spine." Dr Mastroianni went on to express the view set out above.
On behalf of Jurox, reliance was also placed on reports of Dr Robert Kuru, the respondent's treating orthopaedic surgeon. The primary judge specifically relied on these reports. It was submitted on behalf of Jurox that Dr Kuru's reports were not supportive of his Honour's conclusions. That was because Dr Kuru said, in a report dated 22 August 2012: "I have reassured her that her condition is degenerative in nature and should she be able to tolerate it she was safe to be active within the tolerance of her symptoms." and, in a report dated 10 September 2012: "3. I think it probably is likely that had she have not had an injury she may be experiencing her current symptoms."
Leaving aside the degree of reassurance that may have been afforded to the respondent by being advised that her condition was degenerative in nature, if these statements were taken alone, they may be seen as unsupportive of the conclusion of the primary judge. However, it is difficult to reconcile sub-paragraph (3) in the latter report with the sub-paragraph that appears two lines below, in the following terms: "5. In approximately 99% of claims relating to the lumbar spine in workers compensation cases I see the imaging changes are pre-existing and unrelated to injury. What is relevant here is the history of deterioration in the symptoms with the injury which demonstrates aggravation of her pre-existing condition." (italics added)
There is, I am satisfied, no error demonstrated in the acceptance by the primary judge of the opinion of Dr Mastroianni in preference to that of Dr Harrington. Dr Mastroianni's opinion is entirely consistent with the whole of the evidence. The advantage of the general practitioner's medical records is that they are contemporaneous, progressive and objective.
For completeness, I note a submission made on behalf of Jurox, which I quote: "90 Dr Mastroianni … the medico-legal physician qualified by the respondent' solicitors was initially not given a history of the Respondent's past history of sciatica and narcotic analgesia. When presented with the histories of sciatica and treatment in July 2000 and December 2010, [he] made comment upon the contents of the various clinical notes and attempted to draw a distinction between complaints of sciatica and complaints of 'back pain'. 91 It is submitted that this distinction is an artificial and unpersuasive distinction which does not overcome the lack of direct evidence from the respondent on the issue. It cannot be controversial to observe that sciatica refers to pain that radiates along the path of the sciatic nerve which branches from the lower back, through the hips and buttocks and down each leg …"
No attempt was made to identify the occasion on which Dr Mastroianni was said to have been presented with the history of sciatica and analgesic treatment, nor of his attempt to draw "an artificial and unpersuasive distinction" between back pain and sciatica. I do not accept that the distinction is artificial or unpersuasive. The evidence is that, prior to December 2011, the respondent's degenerative back condition was asymptomatic. Such symptoms as she had experienced, on two occasions over a decade, were in her leg. After December 2011 her back condition, as to which there is no evidence that she had previously experienced symptoms, (other than Dr Harrington's speculation that she "must have" experienced back pain) was significantly symptomatic. Dr Mastroianni provided a perfectly reasonable medical opinion supportive of a causal relationship between the incident of December 2011 and the commencement (and continuation) of symptoms.
It may be that the respondent's symptoms would, in any event, have emerged at some time later than December 2011, but earlier than, for example, conventional retirement age. This may be what Dr Kuru was alluding to in the passage extracted above. If so, no attempt was made on the evidence to have such a finding made on the evidence. Jurox elected to rely on Dr Harrington's view that the aggravation caused by the incident was transitory and had subsided by the end of 2012. In that it failed. It did not leave open any other alternative concerning causation.
The contention on behalf of Jurox that error is identified in the approach of the primary judge to the cause of the respondent's ongoing symptoms must, in my opinion, be rejected. That issue was the key to the quantification of damages under all heads. It was submitted that: "101 His Honour's calculations of the different heads of damages are all infected by the same error and cannot be sustained."
It was not suggested, for example, that, if the causal connection were established, the s 16 assessment was erroneous; nor that the quantification of treatment expenses past and future, economic loss past and future, and gratuitous assistance, past and future were excessive or erroneous.
I would therefore reject the challenge to the quantification of damages.
The orders I propose are: (1) Appeal dismissed; (2) Appellant to pay the respondent's costs of the appeal.
ROTHMAN J: I agree with Simpson JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 July 2016

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